Resident Magistrate's Court.

Clutha Leader, Volume V, Issue 216, 30 August 1878, Page 5

Resident Magistrate's Court.

BALCLUTHA.

Wednesday, Aug. 28, 1878. (Before E. H. Carew, Esq., R.M.) Rehberg v. Perry. — This was a charge of being drunk and disorderly in a publio place. Mr Reid for complainant. Defendant pleaded guUty, but complainant's evidence went to show that it was not in a public place, and defendant was allowed to withdraw his plea and plead not guUty. The charge was dismissed.

Same v. Same. — Charge of unlawfully assaulting and beating the said P. Rehberg. Mr Reid for plaintiff. Defendant pleaded not guilty.

The evidence showed that defendant had been in plaintiff's employ, and had been discharged on Tuesday morning for using insulting language to him. In the afternoon defendant came to Mr M'NeU's building for his tools, and, after using insulting language to complainant, he chased complainant with a Board, threatened him with an auger, and struck him with his fist. Complainant caUed another carpenter, and had defendant removed.

Defendant said he. had been provoked into the assault, and had himself been threatened and assaulted first.

Defendant was fined 40s, and costs 63 6d ; in default, three days' imprisonment with hard labour.

Smith v.^ Robertson and Others. — In this case, his Worship deUvered judgment as f oUows : The terms of the contract upon which this action is founded being in dispute, I have first to determine what was the contract. It originated from a notice which reads as follows : ' ' Tenders wanted for removal of flood gates at the mouth of the Kaitangata Creek. Por particulars apply to Mr P. N. Stoddart," &o. Mr Stoddart gave the notice to plaintiff to post in his window, and plaintiff enquired as to particulars from Mr Stoddart. The evidence is conflicting as to what then passed. Plaintiff said he was told that aU timber would have to bo removed as far as the floor of the lock, that the floor need not be removed, but all timber that could be was to be saved and placed on the river bank. He says further that Mr Stoddart said that it was only required that the timber which was an obstruction to the water flowing out of the lake should be removed, and as deep only as the floor of the lock. Mr Stoddart on the other hand said he told plaintiff the piles and other timber and the iron work were to be all saved, taken carefully asunder, and placed on the river bank, but that the Committee were not particular about the floor, and that the lower beams could be cut so that the piles might aU be drawn, and if the floor came up it was tp be saved also. The ' plaintiff's case is somewhat supported by Mr Shand, who says he went to Mr Stoddart to get the particulars of the wo£k to be done, that he saw a written specification, but not understanding it he asked Stoddart to explain, and that then Stoddart gave him to understand they wanted the timber erection removed to prevent the obstruction of water flowing from the lake, that the upper timber was to be saved, but that below water could be cut away, and the floor was not required to be removed. It does not appear that plaintiff's attention was ever called to the written specifications before his contract was accepted, and no reference is made to written specifications either in the notice caUing for tenders or in plaintiff's tender, and the question really depends upon what Stoddart told plaintiff Was required to be done. If I beHeve Shand I must also believe plaintiff's statement as being highly probable, and Shand appearing to be quite disinterested I see no reason to discredit his evidence. Then comes the question, has the contract to remove the timber as far as the floor and to place it on the river bank'been reasonably weU executed 1 On this point there is evidence that several of the pUes are missing, and that some of the upper beams that should have been removed by taking out iron bolts have been sawn through and the wood thereby reduced ih value, and no sufficient explanation has been given of these. In these respects the contract is incomplete, and the value of the work done reduced to the defendants, and I think it is a case in which I can properly aUow an abatement of the contract price. It matters not, in my opinion, as to the agency employed to remove the timber, whether it was horse power or dynamite, the questions being whether the contract was complete and efficiently executed. A great deal of evidence has been given in the case, but very Httle to enable Aie to judge of the value of the missing piles and timber injured in value, but I assess it at 50s, giving judgment for plaintiff for the balance LlO, costs of Court 19s, and professional costs 21s. Tosh and Cossens v. Bell (trustee'in the estate of the late John Johnston). — Claim, L 9 T4s 6d. Mr Henderson/for plaintiffs, and Mr Reid for defendant^ who pleaded not indebted and not trusteeAA A "- Mr Henderson caUed the, defendant^ John BeU,Lwhp said he knew the; hite^ohnV^r Johnston, ' who was . Ids t brotherrin-lawfA^ Witness was guardian oi the c^dienjjqni Ja was not trustee in th^e^te;|Aßc^e(s^ J7 Snow werejrustees; 7only : Ls liadDeenpaid -7 ? .to;witness out of the estateA.whichrp^lised.*? L7lB, ahd'that was to7payforreihbyal of . 7 chUdren to his own place. A ; . A J:'yJAjXy. MrrHenderson ' asked Afor7;aAhbnsuitAc , ivhichT^as grarated;7mthAi9s W^jb^^and?f§ c. 7^fe^ipiial:fee ;10s(6<iA AA ATAAAA XAr&§B